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Sexual Harrassment Law in the United States: A Primer
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2Wycked Offline
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Sexual Harrassment Law in the United States: A Primer
Sexual harassment of women at work has been a pet issue for feminist since the 1970’s. Once they burst into traditionally male jobs, women found the behavior of men distasteful. Women complained of depression, alcoholism and even suicide because they could not cope with the atmosphere of the masculine workplace. It is true that some of these women were in truly wretched situations and deserved some legal justice; however, extreme cases make bad law.

The term “sexual harassment” was coined in 1975 by a woman named Lin Farley.

[Image: 116_116.JPG?width=184&height=184...crop=1%3A1]

After a “consciousness raising” seminar, where women talked about men making sexist remarks to them, making sexual comments and asking them out, Farley invented the term and took the issue nationwide. She wrote a book, gave countless interviews and also produced a video that companies and the government sometimes showed to their employees. The outcry of feminists did lead to legal change – in the form of sexual harassment jurisprudence. Understand that, at the federal level, it is judge-made law. While The Civil Rights Act is relied to get into court, there are no statues at the federal level about sexual harassment. States may have passed laws about sexual harassment (SH), but I did not do any research on that.

SH claims are based on Title VII in the 1964 Civil Rights Act. Obviously, the context at the time was preventing racial harassment at work. The first Supreme Court case about racial harassment at work, Rogers v. EEOC, laid the groundwork for sexual harassment law to come into being. In the case, Justice Goldberg stated Title VII should be afforded a liberal interpretation to effectuate Congress’ intent to prevent racial discrimination and harassment. In the case, a doctor segregated Hispanic patients from the rest of his patients. Courts were initially skeptical of extending Title VII to sexual harassment, because obviously Congress’ intent with the Civil Rights Act was helping minorities. That is, until the Meritor decision in 1986.

Meritor Savings Bank v. Vinson held that discriminatory sexual harassment that creates a hostile work environment for the complainant violates Title VII. In one stroke, the Supreme Court opened the floodgates for lawsuits. Many more cases helped flesh out the approach the legal system takes about SH. Unfortunately, the courts in America have relied on radical feminist Catherine MacKinnon as their source about sexual harassment at work.

A picture of the bitch MacKinnon:
[Image: catharine_mackinnon_spot.jpg]

Generally speaking, there are two avenues by which a woman could sue her employer. She could either allege a quid pro quo situation or a hostile work environment. I will consider both of these situations separately.

Quid pro quo is simply a situation where a woman provides sex for benefits, continued employment, etc. There really isn’t much to say about this situation, but the hostile work environment is a doozy.

A hostile work environment refers to a pattern of behavior, over the course of time or one outrageous incident, that is sexual in nature, uncomfortable, etc. It depends purely on the perception of the plaintiff. Successful lawsuits have included one male who was repeatedly referred to as a “fairy” and told to be manlier, a woman whose boss repeatedly told her to wear more makeup, and a woman who was asked, in an interview, if she was married or expecting to have children in the future.

Let’s step through the elements that must be proved at trial. First, the plaintiff must allege they belong to a protected class. This prong is always met as the plaintiff will allege they were targeted because of their gender. Second, the plaintiff must prove the advances or actions were unwelcome. One crazy feminist in the UCLA Law Review argued the burden of proof should be shifted to the defendant, who will then have to prove that his or her advances were indeed welcome. Third, is that the harassment was based on sex. This prong has resulted in some bizarre cases making issues out of whether the alleged harasser was straight, gay or bisexual.

Fourth is that the harassment violated a term of the employment. I can’t imagine a plaintiff unable to prove that the harassment wasn’t a violation of their contract; thumbing through the legal textbook I have, I didn’t see any cases working this issue. Fifth, is the doctrine of respondeat superior applies. I won’t go into the various theories of legal liability for an employer, but for the purposes of this writeup, understand that just because a person can meet the legal burden to prove harassment, it does not mean that the employer will necessarily be held liable by a court.

The second prong about unwelcome advances is the most problematic of all the elements. In Ellison v. Brady (a 9th Circuit case, mind you) apparently took a “reasonable woman” standard for plaintiffs – i.e. courts will judge a case by whether a reasonable woman would have been offended or hurt by the advances or situation. The case approvingly cited research from radical feminist Barbara Ehrenrich and coughed up the gem of a statement, “[W]e believe a sex-blind reasonable person tend to be male-biased and tends to systemically ignore the experiences of women. “ The practical effect is that women – who are far more sensitive and likely to be offended – are the yardstick by which this court wants to judge advances, actions and situations.

While the Supreme Court did not endorse this view, and this point is unclear legally at this juncture, but the Court suggests they support an objective person standard, as opposed to an aggrieved woman standard. Given the two women Obama tossed onto the Court, I would strongly suspect they would endorse the Brady approach. The nomination of Kagan was a good move by Obama because she had no case law to analyze; Sotomayor is just a garden-variety feminist who literally is a complete, predictable bore.

In any event, this area of law is a feminist trainwreck. The text I consulted writing this repeatedly emphasizes that sexual harassment isn’t about sex, it’s about power and exclusion. While maybe some sadistic fuck may do it for that reason, usually it is about some thirsty-ass simp with no game stepping to a woman, and the woman is worried because he a huge turn-off and may be a reflection of her true sexual market value.

As I said out the gate, some of these situations are fucked up and the woman deserves a day in court. However, many of the women – and some men – are just over-sensitive plaintiffs. When I was reading the book Emotional Vampires, the author pointed out that people with Histrionic Personality Disorder are far more likely to file these sorts of suits. I didn’t find any stats about the issue, but I wonder how many women are serial lawsuit-filers? Would be an interesting study, one I think feminists would hate.

Extreme cases make bad law, period – and that what the jurisprudential development of SH law is. Bad law. The practical effect of all this nonsense is that women are given an upper hand in the workplace. Several cases I reviewed repeatedly stated “we by no means are privileging women over men in our decision.” Really – you just come out and say it?

I am going to write a review of the cases I read and discuss what legal defenses worked and effective ways to deal with a sexual harassment charge in court.
(This post was last modified: 04-27-2013 12:01 AM by 2Wycked.)
04-26-2013 11:47 PM
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kbell Offline
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RE: Sexual Harrassment Law in the United States: A Primer
Are you a law student? What does 9th Circuit case mean?
04-27-2013 12:05 AM
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2Wycked Offline
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RE: Sexual Harrassment Law in the United States: A Primer
(04-27-2013 12:05 AM)kbell Wrote:  Are you a law student? What does 9th Circuit case mean?

The Ellison v. Brady was a groundbreaking case for feminists and women, who simply wanted women put in the driver's seat for judging sexual harassment cases. Seriously, studies have shown that female judges, liberal to conservative, are all in agreement on only one issue - sexual harassment. The decision is about putting women in firm control of sexual harassment cases - making them the judge, jury and executioner.

The decision reads like a typical feminist exposition - so I won't go into that. However, the decision was a landmark one because the court states the appropriate way to judge sexual harassment was the perspective of the victim - yes, the court assumed a complainant was a victim out of the gate. The decision repeatedly emphasizes how much women have to go through that men don't, and how that makes them more sensitive than men. They assumed that the general person is biased in favor of men. The decision is simply boilerplate female-centric bullshit.

The Supreme Court in Breeden tossed out a sexual harassment case because, in their view, no reasonable person could have thought that the actions complained of were harassment. However, the context was a retaliation lawsuit; she was suing because she claimed her employer retaliated against her because she complained about the alleged harassment. It has implications for hostile work environment cases in general, but isn't on point.

My general point about the Brady decision is if it implemented by the Supreme Court, it would be a disaster, as a court would be trying to figure out what the reasonable woman would think about a particular fact pattern. As you know, it will be some hamster bullshit because attractive men will get a pass and betas and omegas will get fucked. I really don't what a court would deem a reasonable woman would think - but feminists would start bitching about sexism if some court "gets it wrong."

Given how much women see themselves as victims, there would be a run on the courthouse if that standard is implemented. Trial lawyers, like John Edwards, would be raking in the cash.
(This post was last modified: 04-27-2013 12:33 AM by 2Wycked.)
04-27-2013 12:22 AM
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kbell Offline
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RE: Sexual Harrassment Law in the United States: A Primer
I mean the technical terms. You said "a 9th circuit case" which I took to mean it wasn't that important.
04-27-2013 12:33 AM
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2Wycked Offline
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RE: Sexual Harrassment Law in the United States: A Primer
(04-27-2013 12:33 AM)kbell Wrote:  I mean the technical terms. You said "a 9th circuit case" which I took to mean it wasn't that important.

Gotcha. You are right - it isn't as important as a Supreme Court case; the case is only controlling for area the 9th Circuit is in - which is the west coast. It has no legal authority outside it's geography.

It has been widely discussed - but hasn't been cited all that much by other court opinions. It is the sort of opinion, that if the mood is right on the Supreme Court, it could become federal law.

If Obama gets one more appointee I can promise you a case like this will find it's way to the Court. Feminists have gotten quiet about Brady recently, but from the mood in my school, they are 100% ready to implement the standard, if given the chance.
(This post was last modified: 04-27-2013 12:40 AM by 2Wycked.)
04-27-2013 12:40 AM
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lurker Offline
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RE: Sexual Harrassment Law in the United States: A Primer
(04-27-2013 12:05 AM)kbell Wrote:  Are you a law student? What does 9th Circuit case mean?

The federal judiciary is organized according to statute plus Articles I and III of the United States Constitution. Article III courts have the power to give final judgments on cases or controversies. At this point, things shake out like this:

Article III courts

The Supreme Court (SCOTUS, or "Supreme Court Of The United States") has ultimate appellate jurisdiction over everything, and mostly decrees legal policy from on high. Cases reach the Court in three ways:

1. Original jurisdiction, which rarely happens. Cases where one state sues another, for instance, go immediately to SCOTUS.
2. Appeals from the federal circuits.
3. Appeals from the state court of last resort (e.g. CA Supreme Court, NY Court of Appeals, etc.)

SCOTUS decides what cases to hear in a given term (usually referred to as October Term [year]) by the certiorari process. Losers in the circuits or state court of last resort will petition SCOTUS for cert, or review of the legal principles which ultimately decided their case. The judges will read petitions, and, if four judges agree to hear the case, cert will be granted. Around 100 cases a year receive cert from 8000 petitions. Circuit cases are thus more important than you think, because they have an extremely high chance of setting the final law in their jurisdiction.

Federal Circuit Courts sit below the Supreme Court and hear appeals from federal district courts. There are 11 numbered Circuits, plus the DC Circuit and Federal Circuit. The numbered and DC Circuits hear cases on a geographical basis, while the Federal Circuit hears cases based on subject matter: patent cases, trademark cases, federal claims, and certain economic statutes.

Except for Federal Circuit cases, which are binding on all district courts, a circuit decision is only binding within its borders - for instance, a 9th Circuit decision is binding on the following courts:

Southern Dist. of CA
Central DCA
NDCA
EDCA
D. Ariz
D. NV
D. OR
WDWA
EDWA
D. ID
D. HI
D. AK
D. MT
D. Guam
D. Northern Mariana Islands.

However, other circuits and district courts may cite the case for persuasive, rather than binding precedential, authority - which many will, as will state appellate courts within the 9th Circuit.

District Courts are trial courts that sit in each jurisdiction. When you originally file a federal case, you file in the US District Court in the area. For instance, the Central District of CA is in Los Angeles; if you had an LA federal case, you'd file there.


Article I courts have specific subject matter to deal with, and include Bankruptcy and Tax courts, as well as magistrates within the US District Courts. The roles of Art. I courts have gotten a lot blurrier since Anna Nicole Smith existed.
04-27-2013 12:22 PM
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soup Offline
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RE: Sexual Harrassment Law in the United States: A Primer
Can you simplify this anymore?

TL;DR

Go out of your comfort zone to open girls that intimidate you.
04-27-2013 12:28 PM
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RE: Sexual Harrassment Law in the United States: A Primer
(04-27-2013 12:28 PM)soup Wrote:  Can you simplify this anymore?

TL;DR

1. If you promise a chick a raise for fucking you, your ass is getting sued.

2. If you, your employees, or even your customers are making sexual comments to a woman or making her feel uncomfortable, your ass is getting sued.

3. When your ass gets sued, the court decides whether a "reasonable woman" would have found the conduct harassing, rather than a "reasonable person."
04-27-2013 12:40 PM
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2Wycked
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RE: Sexual Harrassment Law in the United States: A Primer
Also, that picture of Kitty Mac is at least a decade more flattering than what she actually looks like on a regular basis.
04-27-2013 12:44 PM
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2Wycked Offline
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RE: Sexual Harrassment Law in the United States: A Primer
(04-27-2013 12:40 PM)lurker Wrote:  
(04-27-2013 12:28 PM)soup Wrote:  Can you simplify this anymore?

TL;DR

1. If you promise a chick a raise for fucking you, your ass is getting sued.

2. If you, your employees, or even your customers are making sexual comments to a woman or making her feel uncomfortable, your ass is getting sued.

3. When your ass gets sued, the court decides whether a "reasonable woman" would have found the conduct harassing, rather than a "reasonable person."

Yep, this basically is it.

The law on SH puts women in control. If you find yourself in court on one of these charges, you will be fighting an uphill battle.

The review of legal defenses to SH I am writing may clarify things.
04-27-2013 03:56 PM
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RE: Sexual Harrassment Law in the United States: A Primer
(04-27-2013 03:56 PM)2Wycked Wrote:  The law on SH puts women in control. If you find yourself in court on one of these charges, you will be fighting an uphill battle.

The review of legal defenses to SH I am writing may clarify things.

If you find yourself in court on one of these charges, you already lost the uphill battle. Some of my clients have been sued over this shit. By the time you get to trial you're looking at an easy mid-six figures of attorney fees and costs. The alternative, of course, is to settle, but you might as well put a target on your back for every skank who wants to exploit you for a payday. So you end up putting harsh anti-harassment language into your employee handbook, making your supervisory employees take a mandatory 2 hour training class every two years, and stifling any sort of sexualization of the workplace lest one of these professional plaintiffs rear her ugly head. Oh, and don't forget you're also responsible for policing your customers' behavior.
04-27-2013 09:37 PM
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